A recent article in U.S. News and World Report, quoted Mary Giovagnoli, Director of the...
Court Finds Categorical Approach Not Applicable in Determining Amount of Fraud Loss
Nijhawan v. Mukasey, 557 U.S. 29 (2009)
The Supreme Court addressed what evidence an IJ may consider to determine removability based on an aggravated felony conviction under INA § 101(a)(43)(M)(i), an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.
In a unanimous decision, the Court held that the IJ did not err in looking beyond the record of conviction and considering the petitioner's sentencing stipulation and restitution order to determine the amount of loss to the victim. The Court found that "Congress did not intend subparagraph (M)(i)'s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include that threshold. Rather, the monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occasion." The Court also rejected the application of a modified categorical approach, which would limit the IJ's consideration to judicially determined facts.
However, the Court noted that the immigration statute mandates "fundamentally fair procedures, including procedures that give an alien a fair opportunity to dispute a Government claim that a prior conviction involved a fraud with the relevant loss to the victims." The government has the burden of establishing the loss amount by clear and convincing evidence. Moreover, the loss amount must be tied to the specific counts covered by the conviction. The Court's decision is consistent with the BIA's approach, as set forth in Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007).
Read the opinion.